Do you have reason to believe that the will of a loved one or family member should be contested?
In most cases, where a deceased person leaves a will, the estate goes through the probate process according to probate law. Legal formalities and the case are opened and shut in an uncomplicated manner. But in cases where an interested party believes there may be grounds for contesting the will, there is a process for doing so.
Who can contest a will?
The only individuals who can challenge a will are:
- Those who are specifically named in the will
- Those who were named in a previous will
- Those who would have received a share of the estate under intestate laws (Intestacy laws determine how an estate is divided when someone dies without a will.)
If you qualify as a party with legal grounds to challenge a will, the first step is to determine if it includes a No Contest clause. This provision states that any beneficiary who attempts to challenge it will be disinherited as a beneficiary. In this case, if you decide to continue and challenge, and the will is found to be valid, you will no longer receive an inheritance. Therefore, it is worth considering the risk of proceeding.
What are the reasons a will may be contested?
According to California state laws, anyone over the age of 18 may create a legal will. This person must have the testamentary capacity or be mentally fit and must not be unduly influenced.
The California Probate Code requires that two parties witness every Last Will and Testament at the time it is signed. There are certain rules that designate who can serve as a witness and under what circumstances the will is signed.
For example, an interested person cannot be considered a legal witness. All the witnesses must be disinterested parties that do not benefit or inherit property under the terms of the will. They must also be aware of what they are signing and witness the signing of the will in person. The signature of all signees must be handwritten.
However, a will may not be considered officially invalid if it does not have witness signatures, although it can still be contested. It can be treated as a holographic will if the testator’s signature and the material provisions of the will are in the testator’s handwriting.
In summary, to contest, there must be a valid legal reason. These include but are not limited to:
- If the will-maker was under the age of 18 years
- If the will-maker lacked the mental capacity to sign the will or was not of sound mind when they signed
- If the will is not in writing or the signature does not belong to the testator
- If the will was made under undue influence or fraud
- If at least two legal qualifying witnesses did not sign the will
Receiving Legal Assistance
In most cases, a will created with an estate planning attorney is legal and valid. It, therefore, does not leave much ground for contesting the will in probate court.
But sometimes, a will was individually created, created in secrecy, or simply not created, filed, or stored correctly. In this case, you may have reason to believe that the will is not valid or was not properly witnessed.
If you are a person contesting a will, it is advisable to consult a law firm to consider your legal options. We understand that objecting to a will can be intimidating.
The Legacy Lawyers can help you. We specialize in reviewing the unique circumstances of your case and can help you understand all of your legal options. We will carefully walk with you every step of the way. You will never be left wondering what to do next as we take care of all necessary paperwork and stay up to date on legal requirements.
Start today by calling to schedule your no-cost consultation, and we can help determine your best strategy for objecting to an invalid will: (714) 963-7543.
At The Legacy Lawyers, we are dedicated to your peace of mind. We are available to answer your questions at no additional charge.